Friday, December 7, 2007

Liebman on Restricted Reform in China Courts

In the school’s library I decided to see what they had under China in the current periodicals section. There was much that was not current, but one title struck my eye: The China Quarterly, September 2007, Vol. 191. This also happened to be a special issue covering new developments in China’s Legal System, with commentary on each article by Chinese law professors. Perfect!

On China Business Law Blog and China Law Blog, there has been discussion of judicial reform. On that note I’m taking up Benjamin Liebman’s article, “China’s Courts: Restricted Reform”. This is an interesting article because Mr. Liebman argues that the official reforms have been limited and the most important changes have come from innovation in local courts. In Shen Kui’s commentary, Mr. Shen argues for an alternative measure of judicial reform which finds that reform has not been restricted. Mr. Liebman is professor of law and director of the Center for Chinese Legal Studies at Columbia Law School, and Mr. Shen is an associate professor at Peking University Law School.

Official Abstract

China's courts have in recent years engaged in significant reforms designed to raise the quality of their work. Yet such top-down reforms have been largely technical and are not designed to alter courts' power. Courts have also encountered new challenges, including rising populist pressures, which may undermine their authority. The most important changes in China's courts have come from the ground up: local courts have engaged in significant innovation, and horizontal interaction among judges is facilitating the development of professional identity. Recent developments have largely avoided two central questions facing China's courts: why have courts been permitted to develop even limited new roles, and what additional roles, if any, may they play within the Chinese political system?

Summary of the Article

History of Top-Down Judicial Reform
  • “Reconstruction of the legal system in 1978”.
  • “Embrace of ‘rule of law’ by the 15th Congress of the Communist Party in 1997”.
  • In 1999, Supreme People’s Court issues its first five year reform plan composed of 50 goals.
    • “Significant reforms” including rules of evidence and separation of acceptance of cases from adjudication, and separation of adjudication from enforcement.
  • In 2005, a second 5 year reform plan with 50 more goals.
    • Mr. Liebman calls these goals largely general and overly abstract, aside from technical changes regarding the procedures in capital cases.
Mr. Liebman contends that the most significant reforms issued from the top have been in changing the make up of the courts themselves and are designed around increasing the competence of judges and “the professionalism of the court system.”
  • More than 50% of judges held university degrees in 2005 compared to 6.9% in 1995.
    • This includes four-year degrees, evening classes, junior colleges and correspondence courses.
  • “Since 2002, all new judges … have been required to possess bachelor’s degrees.”
Based on interview with judges, Mr. Liebman concludes that the increased competence of judges is allowing them to more strongly resist external pressure and rely more on legal arguments. But, he also notes that intervention by Party officials is still common in politically sensitive cases whether criminal, political, or “involving the financial interests of the party-state, powerful individuals or high profile companies, as well as cases involving a large number of plaintiffs and those receiving media coverage.” The courts are loyal to the rule of law, but the courts are also loyal to the Party as “re-emphasized in 2006 with the launching of a new campaign on ‘socialist rule of law theory’”, and those who might be subject to litigation in China should not forget this.

Statistics on Caseloads:
  • First instance civil cases peaked in 1999 with ~5m cases, first instance civil cases numbered ~4.4m in 2006.
    • Thinks that suggests courts “are not necessarily playing a greater role relative to other institutions”.
  • Appealing of civil cases has been on a more or less steady increase from about 180,000 civil appeals in 1994 to over 400,000 civil appeals in 2006.
    • Liebman attributes this to greater familiarity with the judicial system, and greater confidence that higher courts will issue opinions that differ from the lower courts.
  • Arbitration has increased more than 20% per year from 2004-2006.
    • Increase in arbitration and decrease in growth of litigation suggests that there is no increase in the “clarity of legal norms”, according to Liebman.

Outside Pressure on the Courts That Are Limiting Reform
Liebman writes that the media plays “an important role in exposing injustice and in pressuring courts to play fairly.” This media coverage also encourages the Party to step in and intervene in cases for the sake of social stability. Outside intervention stymies steps towards the rule of law by placing the concerns of the interveners above the law.

Liebman expresses the concern of the Chinese judges that he interviewed who worry that pressure from petitioners and protesters is causing courts to rule in cases that lack legal merits. And when judges respond to one protest or petition, they encourage further petitions and protests.

Most Significant Bottom-Up Developments
Liebman argues that the three most important developments are happening in the lower courts.
  1. Lower courts are looking to other courts of equal rank for guidance on new or difficult legal questions. He believes that this judicial networking “may lead to more consistent application of the law”. This also leads to the growth of judicial identity with their peers which will make the courts more likely to resist outside interference.
  2. These growing judicial networks “may foster judicial innovation”, which “challenge existing legal norms or consciously break new legal ground”. An example presented by Liebman shows this to be what was happening in Brad Luo’s post linked to in the introduction. In the Seed Case, the judges declared a provincial pricing regulation invalid because it was in conflict with the national Seed law. This showed that courts had the power to invalidate regulations, according to Liebman.
  3. The courts are being used by lawyers who want “to use litigation to bring social change”. Liebman writes that China “may be distinct in its extreme reliance on extra-judicial responses to major public disputes in the courts”, and the use of litigation to create this pressure might have a big effect on the policies of the party.

Liebman’s Concluding Remarks
He in no way means to trivialize the reform that has taken place in Chinese courts, he is merely recognizing that reform has been limited in creating independence of the judiciary from the Party.

Liebman writes that the West has mainly pondered the role of courts within a democratic regime, but that this is inappropriate for China where courts “have limited powers over other administrative actors”. A second theory from the West is that a functional legal system is necessary for economic development. He comes up with three alternative theories that he thinks are more plausible:
  1. Chinese “courts are one of a number of party-state institutions serving as a safety valve for a widening range of popular complaints”.
  2. “[T]he evolving roles of courts, including increasing conflicts with other party-state institutions, reflect the development of institutional competition in the Chinese political system”.
  3. “Bottom-up development of the courts may be a source of judicial power”.
Liebman also writes that it is possible for the courts to be fair without independence from the Party.

Call me old fashioned, but I like the theory that a functioning, independent legal system is necessary for economic development beyond a certain point.

Mr. Shen’s Commentary
Mr. Shen writes that he agrees “with the conclusion [of Mr. Liebman] in the sense that judicial reform has not yet brought about any significant change in the position or role of courts in China’s political system”. But, Mr. Shen proposes three tests “to evaluate the achievements of judicial reform in respect to the role or position of the courts.
  1. The first is Liebman’s “ideal-based test” which evaluates judicial reform in its ability to make the judiciary more independent. Mr. Shen writes that under this test, Mr. Liebman is correct that the courts have not experience much reform.
  2. The second is a “goal-based” test which analyzes judicial reform based on whether it has realized the goals laid out by the policy makers. The main goal of the policy makers has been to improve the efficiency and fairness of the courts, and Mr. Shen argues that this has been modestly successful.
  3. The third is a “process-based” test which evaluates judicial reform “against the background of the long and difficult process of political reform in China”. Under this test, Mr. Shen says that “judicial reform has not been restricted in the past decade”.

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